( 1 ) THIS is a Criminal Revision Application under Sec. 401 read with Sec. 397 of the Criminal Procedure Code, 1973 (for short "cr. P. C.), filed by the original accused of Criminal case, Chief Case No. 35 of 1985 pending on the file of the learned Chief Judicial Magistrate, Mahesana (who will be referred to hereinafter as the "learned Magistrate" for the sake of convenience, challenging the correctness, legality and propriety of Judgment Ex. 9 rendered by the learned Additional Sessions Judge, Mahesana (who will be referred to hereinafter as "learned Appellate Judge" for the sake of convenience in Criminal Appeal No. 5 of 1990 on 20th April, 1990, whereby the learned Appellate Judge was pleased to confirm the judgment Exh. 49 and order of conviction and sentence rendered by the learned Magistrate on 26th December, 1989 in Chief Case No. 35 of 1985. The learned Magistrate convicted the accused for an offence punishable under Sec. 408 of Indian Penal Code (for short "i. P. Code") and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs. 5,000. 00, I/d to further undergo Simple Imprisonment for six months. Here in this Criminal Revision Application, the original petitioner was the accused in Chief Case No. 35 of 1985, whereas the revision opponent i. e. the State of Gujarat was the prosecution in that case before the trial court, and therefore, for the sake of convenience, the parties will be referred to hereinafter as the complainant, accused and prosecution respectively at appropriate stages.

( 2 ) THE facts leading to this Criminal Revision Application, in a nutshell, are as follows:-DURING the period from 1/7/1984 to 18/10/1984, the accused was serving as the Secretary i. e. paid employee in Sokhada Seva Sahakari Mandali of village Sokhada, Tal. Vijapur, Dist. Mahesana ( in short "mandali" ). It is the case of the prosecution that it was one of the duties of the accused as the Secretary of the said Mandali to keep and maintain the books of account of the Mandali and also to keep cash of the Mandali with him. According to the Rules of the Mandali, the Secretary was authorised to keep on hand a cash of only Rs. 1,000. 00 and he was also duty bound to deposit an excess amount of the Mandali over Rs. 1,000. 00 in the account of the Mandali with the Bank. ON or about 11-10-1984, the accounts of the Mandali were inspected by one Bhikhabhai Mangaldas Patel -the Supervisor of Mahesana District Sahakari Bank, Vijapur Branch, Vijapur, and during the course of inspection, it was revealed that as on 29/9/1984, Prahladbhai Bhogilal i. e. accused in his capacity as the Secretary had kept on hand cash exceeding Rs. 1,000. 00. As per the case of the prosecution, on 29/9/1984, the accused had kept with him a hard cash of Rs. 46,907-39 Ps. as appeared in the Rojmel on 29th September, 1984. Thereupon the accused explained that he had misappropriated that amount for his own use and he would return the said amount within a period of 15 days. The accused also made a statement to this effect which is at Ex. 21. It is further the case of the prosecution that on 23/11/1984, the accused returned Rs. 2,400. 00 and on 24/11/1984, he returned Rs. 5,000. 00 to the Mandali, but he failed to make the payment of remaining amount. The Supervisor who inspected the books of account of the Mandali made his report to his Head Office in this regard. The Head Office of the Bank, in turn, reported this matter to the District Registrar, Co-operative Societies, Mahesana. Thereafter, one Purshottambhai Manilal Patel who was the then working as a Co-operation Officer (Consumer) in the Office of the District Registrar, Co-operative Societies, Mahesana, filed a complaint against the accused on 24/3/1985 in Vijapur Police Station. As per that complaint, the accused had misappropriated a sum of Rs. 46,907-39 Ps. being a property of the Mandali for his own use, and thereby, the accused has committed an offence of criminal breach of